Monday, March 26, 2012

﻿Starting on Monday (3-26) the Supreme Court of the United States will hear three days of oral arguments concerning the constitutionality of the Patient Protection and Affordable Care Act (PPACA)-popularly and usually derisively- known as Obamacare. We thought it might be worthwhile to revisit some of the legal and policy ramifications of this law and what questions the Court will be looking at when it makes this momentous decision.Shady Grady No one really knows how the Court will rule. There is a chance that the Court will refuse to rule at this time. I am not a fan of this law on either policy and legal grounds. I think that it is a a giveaway to pharmaceutical and insurance companies in return for slight benefits and increased premiums to health care consumers. I think, as we saw with the uproar over the HHS mandates about women's health and contraceptives, that the PPACA lends itself to the greater politicization of health care, as groups compete to insure that their particular needs are made "free" while someone else pays the bill.

I think the PPACA individual mandate exceeds the constitutional powers granted to the Federal government. The Federal government, as opposed to the state governments doesn't have general police powers. It is only supposed to have the authority specifically granted to it AND those powers necessary and proper to exercise that authority. Congress does have the power to regulate commerce and has expanded that regulatory authority far far beyond what the Founders likely originally intended.

But what the PPACA seeks to do is to FORCE someone to engage in commerce and then justify this dictate under the Commerce Clause. This is literally unprecedented. Many of the legal justifications for this come down to two cases: Wickard vs. Filburn, in which a man growing wheat for his own personal use was found to fall under Federal regulatory authority and Gonzales vs. Raich in which Congress was found to have the power to overrule states and criminalize the production and use of home grown marijuana used for medicinal purposes. PPACA Supporters point to these cases and say that "Since those individuals weren't in the market but were found to be impacting the market and thus could still be regulated , the individual mandate is thus constitutional".

People who say this tend to skip over the inconvenient fact that in both cases the people who lost their case were nonetheless doing something. What the PPACA individual mandate does is compel someone to enter the market so that you can regulate them. This is akin to a cop forcing you to buy a car for the express purpose of giving you a speeding ticket.

The fallback argument employed by supporters is that without the mandate the PPACA won't work. They say the mandate gets rid of the free rider problem. Well maybe it does but a) the free rider problem is caused by government mandates for emergency care and b) the fact that something might be necessary doesn't mean it's constitutional.

And the Alamo/Thermopylae/Custer's Last Stand/Helm's Deep argument of supporters is that everyone will use health care, that it's a unique national market and therefore whether or not you are currently in the health care market is really a small if not meaningless technicality. Much likeSchrödinger's cat you are in two places at once and therefore can be regulated. I find this argument particularly unconvincing. It is true that most people will use health care at some point in their life. Most people will also live somewhere, eat some food, buy some clothing, and do any number of other things that are commonplace for Americans in the 21st century. The supporters of the individual mandate can not logically point to any constitutionally limiting principle of why a person who happens at the moment not to be in the housing market can't be compelled under this theory to enter the housing market, whether he wants to or not. Their limits are purely political. Well I don't think that will be good enough in court.

Although for obvious reasons phrases such as states' rights and limited federal government leave a bad taste in the mouth of many liberally minded people the fact remains that even under the most generous interpretations of the Commerce Clause, there are limits on Federal authority. Let's not give that away. If we are determined to wash away all limits on the Federal government, let's at least do it the right way and change the Constitution.

The Janitor

Two years ago, I wrote a post entitled "The Top 5 Reasons Why Health Care Reform Will Likely Be Upheld by the SCOTUS." Feel free to read it for a more detailed break down, but in short, I basically argued that the Affordable Care Act (the "Act") will be found constitutional because (i) Congress has the power to regulate the health care industry through the Commerce Clause and (ii) Congress has the power to tax us through the Tax & Spend Clause. In addition to these two basic arguments, I also mentioned that this case presents an issue of standing (as in nobody has any yet) because this law doesn't kick in until 2014. As it turns out, that is precisely one of the issues that will be before the Supreme Court this week during oral argument.

But before we get ahead of ourselves, we should probably take a look at what exactly is before the Supreme Court this week. There have been several cases challenging the Act since it was signed into law, but the one case that the Supreme Court chose to hear comes to us from the perpetually controversial state of Florida where a 56 year-old woman, Mary Brown, does not have health insurance, does not want health insurance and most certainly does not want the federal government telling her that she has to have health insurance. Ironically (or perhaps one might say "predictably"), since filing her challenge to the Act, Ms. Brown and her husband, both small business owners, have filed bankruptcy because of...wait for it...unpaid medical bills that they racked up in the states of Florida, Alabama and Mississippi (did somebody say something about "interstate commerce?" I digress). Ms. Brown won her case at the district court level, and won again at the appellate court level and now comes before the Supreme Court to address the following 4 issues:

1. Whether the federal Anti-Injunction Act prohibits all plaintiffs from bringing a challenge to the individual mandate at this time considering that nobody has been "harmed" by the Affordable Care Act yet.

2. Whether the individual mandate is constitutional.

3. Whether the individual mandate is "severable" from the rest of the Act.

4. Whether the Act can require States to expand their Medicaid programs.

Regarding the first issue, if the Supreme Court rules that there is no standing to sue yet then this whole thing gets kicked down the road until 2014.

Regarding the individual mandate, this is the most controversial aspect of the Act. As I've said above and in my other post, the federal government -- like it or not -- has the constitutional power to regulate interstate commerce via the Commerce Clause and it also -- like it or not -- has the constitutional power to tax the people via the Tax & Spend Clause. So, contrary to Ms. Brown's contention, the question is not whether the federal government can compel you to do something (of course it can; eg. the military draft, filing taxes each year, serving on juries, etc.), rather the threshold question is whether Congress can (A) regulate the health care industry and/or (B) create a health care tax in the first place. Once we accept that Congress has the power to regulate and/or tax the health care market, how they go about such regulations or taxes is irrelevant. Opponents to the Act do not contest that the feds have the right to regulate the health care industry; nor do they contest that the feds have the power to tax. Nevertheless, for reasons that have more to do with a populist anti-big government sentiment than the actual Constitution, these same people can't quite seem to accept the fact that the feds can both regulate and tax when it comes to their health insurance.

Under this Act, if you fail to get health insurance and you don't qualify for one of the many exceptions, then you will be required to pay a higher amount of tax on your federal income tax return. That's it. Nobody comes to your house to arrest you or anything like that. The health care police do not show up and "force" you to walk down to the nearest health insurance company and sign up for a PPO plan. You simply get taxed. So to say that the power to tax is somehow outside of the Constitutional powers granted to the federal government is to ignore the plain language of the Constitution itself.

Another reason why this Court should find the law Constitutional is because this Robert's Court, more so than other recent Courts, has consistently held in favor of an expansive view of the federal government's powers under the Commerce Clause. In fact, Scalia and Roberts have taken this position so much that the Obama administration has specifically quoted them in its brief in defense of the law. In other words, at least two of the Court's conservatives will have to reverse themselves in order to rule that the Act is unconstitutional.

In closing, health care is unlike any other type of industry because, as human beings, EVERYBODY requires health care. That distinguishes this law from any other type of mandate that critics say will result if we allow the federal government to pass a mandate. This is a slippery slope argument that does not pass muster because, as stated above, the federal government already has the power to force us to do things (such as the draft) and, moreover, such arguments ignore the unique nature of health care. No other industry -- real estate, auto, computer, etc. -- is integral to life itself. There is no question whether you will need health care; the only questions left to answer are (1) when and (2) who will pay for it?

﻿Starting on Monday (3-26) the Supreme Court of the United States will hear three days of oral arguments concerning the constitutionality of the Patient Protection and Affordable Care Act (PPACA)-popularly and usually derisively- known as Obamacare. We thought it might be worthwhile to revisit some of the legal and policy ramifications of this law and what questions the Court will be looking at when it makes this momentous decision.Shady Grady No one really knows how the Court will rule. There is a chance that the Court will refuse to rule at this time. I am not a fan of this law on either policy and legal grounds. I think that it is a a giveaway to pharmaceutical and insurance companies in return for slight benefits and increased premiums to health care consumers. I think, as we saw with the uproar over the HHS mandates about women's health and contraceptives, that the PPACA lends itself to the greater politicization of health care, as groups compete to insure that their particular needs are made "free" while someone else pays the bill.

I think the PPACA individual mandate exceeds the constitutional powers granted to the Federal government. The Federal government, as opposed to the state governments doesn't have general police powers. It is only supposed to have the authority specifically granted to it AND those powers necessary and proper to exercise that authority. Congress does have the power to regulate commerce and has expanded that regulatory authority far far beyond what the Founders likely originally intended.

But what the PPACA seeks to do is to FORCE someone to engage in commerce and then justify this dictate under the Commerce Clause. This is literally unprecedented. Many of the legal justifications for this come down to two cases: Wickard vs. Filburn, in which a man growing wheat for his own personal use was found to fall under Federal regulatory authority and Gonzales vs. Raich in which Congress was found to have the power to overrule states and criminalize the production and use of home grown marijuana used for medicinal purposes. PPACA Supporters point to these cases and say that "Since those individuals weren't in the market but were found to be impacting the market and thus could still be regulated , the individual mandate is thus constitutional".

People who say this tend to skip over the inconvenient fact that in both cases the people who lost their case were nonetheless doing something. What the PPACA individual mandate does is compel someone to enter the market so that you can regulate them. This is akin to a cop forcing you to buy a car for the express purpose of giving you a speeding ticket.

The fallback argument employed by supporters is that without the mandate the PPACA won't work. They say the mandate gets rid of the free rider problem. Well maybe it does but a) the free rider problem is caused by government mandates for emergency care and b) the fact that something might be necessary doesn't mean it's constitutional.

And the Alamo/Thermopylae/Custer's Last Stand/Helm's Deep argument of supporters is that everyone will use health care, that it's a unique national market and therefore whether or not you are currently in the health care market is really a small if not meaningless technicality. Much likeSchrödinger's cat you are in two places at once and therefore can be regulated. I find this argument particularly unconvincing. It is true that most people will use health care at some point in their life. Most people will also live somewhere, eat some food, buy some clothing, and do any number of other things that are commonplace for Americans in the 21st century. The supporters of the individual mandate can not logically point to any constitutionally limiting principle of why a person who happens at the moment not to be in the housing market can't be compelled under this theory to enter the housing market, whether he wants to or not. Their limits are purely political. Well I don't think that will be good enough in court.

Although for obvious reasons phrases such as states' rights and limited federal government leave a bad taste in the mouth of many liberally minded people the fact remains that even under the most generous interpretations of the Commerce Clause, there are limits on Federal authority. Let's not give that away. If we are determined to wash away all limits on the Federal government, let's at least do it the right way and change the Constitution.

The Janitor

Two years ago, I wrote a post entitled "The Top 5 Reasons Why Health Care Reform Will Likely Be Upheld by the SCOTUS." Feel free to read it for a more detailed break down, but in short, I basically argued that the Affordable Care Act (the "Act") will be found constitutional because (i) Congress has the power to regulate the health care industry through the Commerce Clause and (ii) Congress has the power to tax us through the Tax & Spend Clause. In addition to these two basic arguments, I also mentioned that this case presents an issue of standing (as in nobody has any yet) because this law doesn't kick in until 2014. As it turns out, that is precisely one of the issues that will be before the Supreme Court this week during oral argument.

But before we get ahead of ourselves, we should probably take a look at what exactly is before the Supreme Court this week. There have been several cases challenging the Act since it was signed into law, but the one case that the Supreme Court chose to hear comes to us from the perpetually controversial state of Florida where a 56 year-old woman, Mary Brown, does not have health insurance, does not want health insurance and most certainly does not want the federal government telling her that she has to have health insurance. Ironically (or perhaps one might say "predictably"), since filing her challenge to the Act, Ms. Brown and her husband, both small business owners, have filed bankruptcy because of...wait for it...unpaid medical bills that they racked up in the states of Florida, Alabama and Mississippi (did somebody say something about "interstate commerce?" I digress). Ms. Brown won her case at the district court level, and won again at the appellate court level and now comes before the Supreme Court to address the following 4 issues:

1. Whether the federal Anti-Injunction Act prohibits all plaintiffs from bringing a challenge to the individual mandate at this time considering that nobody has been "harmed" by the Affordable Care Act yet.

2. Whether the individual mandate is constitutional.

3. Whether the individual mandate is "severable" from the rest of the Act.

4. Whether the Act can require States to expand their Medicaid programs.

Regarding the first issue, if the Supreme Court rules that there is no standing to sue yet then this whole thing gets kicked down the road until 2014.

Regarding the individual mandate, this is the most controversial aspect of the Act. As I've said above and in my other post, the federal government -- like it or not -- has the constitutional power to regulate interstate commerce via the Commerce Clause and it also -- like it or not -- has the constitutional power to tax the people via the Tax & Spend Clause. So, contrary to Ms. Brown's contention, the question is not whether the federal government can compel you to do something (of course it can; eg. the military draft, filing taxes each year, serving on juries, etc.), rather the threshold question is whether Congress can (A) regulate the health care industry and/or (B) create a health care tax in the first place. Once we accept that Congress has the power to regulate and/or tax the health care market, how they go about such regulations or taxes is irrelevant. Opponents to the Act do not contest that the feds have the right to regulate the health care industry; nor do they contest that the feds have the power to tax. Nevertheless, for reasons that have more to do with a populist anti-big government sentiment than the actual Constitution, these same people can't quite seem to accept the fact that the feds can both regulate and tax when it comes to their health insurance.

Under this Act, if you fail to get health insurance and you don't qualify for one of the many exceptions, then you will be required to pay a higher amount of tax on your federal income tax return. That's it. Nobody comes to your house to arrest you or anything like that. The health care police do not show up and "force" you to walk down to the nearest health insurance company and sign up for a PPO plan. You simply get taxed. So to say that the power to tax is somehow outside of the Constitutional powers granted to the federal government is to ignore the plain language of the Constitution itself.

Another reason why this Court should find the law Constitutional is because this Robert's Court, more so than other recent Courts, has consistently held in favor of an expansive view of the federal government's powers under the Commerce Clause. In fact, Scalia and Roberts have taken this position so much that the Obama administration has specifically quoted them in its brief in defense of the law. In other words, at least two of the Court's conservatives will have to reverse themselves in order to rule that the Act is unconstitutional.

In closing, health care is unlike any other type of industry because, as human beings, EVERYBODY requires health care. That distinguishes this law from any other type of mandate that critics say will result if we allow the federal government to pass a mandate. This is a slippery slope argument that does not pass muster because, as stated above, the federal government already has the power to force us to do things (such as the draft) and, moreover, such arguments ignore the unique nature of health care. No other industry -- real estate, auto, computer, etc. -- is integral to life itself. There is no question whether you will need health care; the only questions left to answer are (1) when and (2) who will pay for it?

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